JUDGMENT 1. - This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short 'the Code' hereinafter) is directed against the judgment and order dated passed by Special Judge SC/ST (Prevention of Atrocities) Cases, Sri Ganganagar (for short 'the trial court' hereinafter) in Sessions Case No. 43/2003, whereby the trial court convicted and sentenced the appellant for the offences under sections 376 and 450 IPC as under: (i) Under Section 376 IPC : Seven years rigorous imprisonment and a fine of Rs. 30,000/- in default of payment of amount of fine further to undergo one year simple imprisonment; (ii) Under Section 450 IPC : Four years rigorous imprisonment and a fine of Rs. 10,000/- in default of payment of amount of fine further to undergo one year simple imprisonment. Both the sentences were directed to run concurrently. 2. Aggrieved by the judgment and order Impugned, the appellant has filed the instant appeal. 3. I have heard learned counsel for the appellant and public prosecutor for the State. Perused the judgment and order impugned as also record of the trial court. 4. On 23.2.2003, PW-4 Radha Devi, mother of the prosecutrix, lodged a first information report Ex. P-4 with Police Station Sadulshar to the effect that a day prior to the lodging of FIR, she went from her house to collect the firewood and her daughter was alone in the house. After an hour, when she came back, she found her daughter weeping. On being asked she informed that appellant Phula came in the house by jumping the wall and tied her mouth with Chunni and committed rape on her. The police ensued the investigation for the offence under Section 376 and 450 IPC. After usual, investigation, the police filed Challan against the appellant for the offences noticed above. Before the trial court, the prosecution produced as many as 6 witnesses and tendered in evidence documents Ex. P-1 to Ex. P-8. The appellant made statement under Section 313 of the Code and denied the allegation and produced in defence DW-1 Birbalram. 5. The trial court by the judgment and order impugned convicted and sentenced the appellant as noticed above. 6. It is contended by the learned counsel for the appellant that the prosecution has failed to explain the delay in lodging the first Information report. 5. The trial court by the judgment and order impugned convicted and sentenced the appellant as noticed above. 6. It is contended by the learned counsel for the appellant that the prosecution has failed to explain the delay in lodging the first Information report. It has been further contended that in FIR, the complainant stated that Vimal Devi Krishna Devi, Parmanand and other persons reached at the place of occurrence and prosecutrix narrated the incident to them, however, in the statement of prosecutrix in Court she did not name these persons, on the contrary stated that one Rameshwar Soni, ward member came and before whom she narrated the occurrence. It has been further contended that from the statement of prosecutrix, it no where appears that the appellant had committed sexual intercourse with her against her will and consent. According to learned counsel for the appellant the very essential ingredients of rape as envisaged under Section 375 IPC have not been made out from the statement of prosecution witnesses, in as much as the prosecution has failed to produce any evidence that the appellant had committed sexual intercourse with thq prosecutrix against her will and consent and, therefore, the offence under Section 376 IPC has not been proved beyond reasonable doubt. He has further contended that the offence punishable under Section 450 IPC has also not been established. According to learned counsel, the prosecution has failed to prove that the appellant committed house trespass in order to commit the offence punishable with imprisonment for life. According to learned counsel, if at all any offence is established then it would not traverse beyond Section 452 and 354 IPC. 7. Learned public prosecutor supported the judgment and order impugned. 8. I have given my thoughtful consideration to the rival submission made by the counsel for the parties. 9. Before the trial court, the prosecutrix was examined PW-5. She stated that while she was alone at her house sitting on a cot, at about 4.00 RM. the appellant came by jumping the boundary wall, took her in a Kotha, fell her on the ground, broke the cord and did the bad act without her consent. She suffered pain. Thereafter, the appellant ran away by jumping the wall. After half an hour, her mother came and she narrated the occurrence to her. She denied having dispute with the appellant. 10. She suffered pain. Thereafter, the appellant ran away by jumping the wall. After half an hour, her mother came and she narrated the occurrence to her. She denied having dispute with the appellant. 10. PW-4 Radha Devi, mother of the prosecutrix stated that when she came back home, her daughter was weeping and informed her that the appellant came in the house by jumping the wall, took her in Kotha and broke the cord and did bad act by which blood came, therefore, under fear the appellant ran away. She waited for her husband till next morning of occurrence, but when her husband did not return, she went to the police station and lodge the FIR Ex. P-4. She also denied having enmity on account of dispute with regard to flow of water. 11. PW-1 Dr. Surendra Mohan Batra, he medically examined the prosecutrix and on the basis of ossification test opined that the age of the prosecutrix is between 14 to 15 years. 12. PW-2 B.M. Sharma, Medical Jurist, he medically examined the prosecutrix and stated that there was no external injury on the part of the prosecutrix. There was no marks of injury on vagina, no semen stains were foynd. He categorically stated that had the prosecutrix been subjected to forcible sexual intercourse then there would have been injuries on her body. 13. PW-6 Madan Lai Meena, Investigating Officer has proved his investigation. 14. The appellant in his statement under Section 313 of the Code stated that there was a dispute between him and prosecutrix's family with regard to drainage and to bring the appellant and his father on terms, a false case has been instituted against him. 15. On close scruiny of the statement of doctor as also medical report Ex. P-2, it is clear that on medical examination of the prosecutrix, the medical jurist found no marks of injury on private parts, no blood, mud or semen stain on pubic hair. According to doctor, vagina smear were taken and sent to Forensic Science Laboratory, however, no report was received. According to the opinion of the medical jurist Ex. P-2, no definite opinion regarding rape was given. According to doctor, vagina smear were taken and sent to Forensic Science Laboratory, however, no report was received. According to the opinion of the medical jurist Ex. P-2, no definite opinion regarding rape was given. Even the prosecutrix also did not say that there was any penetration of male organ in her vagina, what the prosecutrix stated is that the appellant committed house trespass by jumping the wall and took her in a Kotha, fell her on the ground and broke the cord and did the bad act. To construe the offence of rape, the penetration is sine-qua-non may be howsoever little. In the Instant case, neither prosecutrix nor any other witness have stated that the appellant penetrated his organ in the vagina of prosecutrix. In the circumstances, therefore, in my view, the prosecution has failed to establish the case of rape against the petitioner. However, from the statement of prosecutrix, it has been established that the appellant used criminal force to prosecutrix intending to outrage or knowing it to be likely that he will thereby outrage her modesty punishable under Section 354 IPC, as also the prosecution has established that the appellant committed house trespass after preparation for assaulting or wrongfully restraining the prosecutrix punishable under Section 452 IPC. In view of the prosecution evidence discussed herein above, the conviction and sentence for the offences-under Sections 376 and 450 IPC cannot be sustained and liable to be modified to that of Section 354 and Section 452 IPC. 16. Consequently, the appeal is partly allowed. The conviction and sentence awarded by the trial court to appellant Phula Ram S/o Birbal for the offences under Sections 376 and 450 IPC are set aside Instead the appellant is convicted for the offences under Section 354 and 452 IPC and sentenced to undergo two years imprisonment for the offence under Section 354 IPC which the appellant has already undergone and for the offence under Section 452N IPC, the appellant is sentenced to the period of imprisonment already undergone by him which comes to 2 years 11 months and 14 days and a fine of Rs. 500/- in default of payment of fine, further to undergo seven days imprisonment. The appellant is in jail, he be relased forthwith on deposit of fine, if not required in any other case.Appeal partly allowed. *******